CSPA/ child not mentioned on petition question (merged)

[bca94 0]

I have a question related to the CSPA matter in the Supreme Court case 'Mayorkas v. Cuellar de Osorio' or the retention of priority date and automatic conversion of category.

Whenever I read about the examples they use when talking about the Mayorkas v. Cuellar de Osorio case, they always mention sons and daughters who were listed as derivative beneficiaries at the time their parents were petitioned but aged out.

Now, my problem is that at the time they petitioned my mother 20+ years ago I wasn't even born yet. So my question is: In the case the immigrants win in this case, would I be able to benefit from the retention of priority date and automatic conversion benefits from CSPA? Or will I not be able due to the fact that I wasn't listed in my mother's petition as a derivative beneficiary?

Luckily even if I don't I still need to wait 5 more years for my mom to get in front of the line so there's enough time to send an update of her case and list her children as dericative beneficiaries.

[bca94 0]

Bump.

[bca94 0]

In the case that immigrants win in the Supreme Court 'Mayorkas v. Cuellar de Osorio' case and they allow aged-out sons and daughters derivatives to retain their parent's original priority date: Do those aged-out derivatives had to be mentioned in their parent's petitions at the time they were filed? Or it is not necessary? 'Cause some people like myself were not even born yet at the time they petitioned our parents.

[Penguin_ie 5,984]

I am a little confused how you can not have been born at the time the petition was filed, but aged out now? There are no petitions with a wait time of longer than 21 years at this time. When exactly did the sibling get NOA1? Has the petition been approved?

Were you added to the petition at any time? USCIS recognises that unborn kids obviously cannot be listed in a petition, but thye are supposed to be added asap/ next time paperwork is sent in.

[ShaunLin 1]

I am a little confused how you can not have been born at the time the petition was filed, but aged out now? There are no petitions with a wait time of longer than 21 years at this time. When exactly did the sibling get NOA1? Has the petition been approved?

Were you added to the petition at any time? USCIS recognises that unborn kids obviously cannot be listed in a petition, but thye are supposed to be added asap/ next time paperwork is sent in.

exactly, first wht u said does not make sense.....

[bca94 0]

My mother is in the F4 Category of Brothers and Sisters of US citizens from the Philippines. Her priority date is 21OCT94 and the current cut-off date of the category is 15NOV90.

I have to mention that I am still 19 years old and haven't aged out yet. But due to the time my mother still needs to wait for her priority date to be current (which is approximately 4 more years) I will indeed age out in the future and will be around 23 years of age at the time my mother gets her green card.

So to your question: Yes, I wasn't born at the time they petitioned my mother and I will already have aged-out at the time she gets her green card.

My only chance was the lawsuit against the government in the Supreme Court to let sons and daughters over 21 years of age to retain their parent's original priority date which the court has ruled against unfortunately this past Monday.

Even then, there is still one last chance if Congress clarifies the confusing statute and confirms that the congressmen who made this law back in 2002 did intend for all children over 21 to retain their parent's original priority date as these congressmen have stated in an amicus brief sent to the Supreme Court and not just one category as the court ruled.

In the case of a victory, I need to know if my sister and I would be able to retain our mother's priority date or we will not be able due to not having been listed on our mother's petition as a derivative beneficiary at the time the petition was filed.

[Penguin_ie 5,984]

Ah sorry yes I was incorrect about the priority date.

What I would suggest is your mom sends in your birth cert and related forms now, so you are on file. There is always a chance the law will change, or that priority dates speed up.

[aaron2020 11,651]

Hi,

Let's try to clear up some confusion.

First, it doesn't matter if you weren't listed on the original petition. Contact the agency that currently has the case (probably the NVC) and provide them with a copy of your birth certificate and an English translation to add you to the case.

Second, SCOTUS said the government's interpretation of automatic conversion and retention of PD only applying to F2a derivative beneficiaries is reasonable and therefore valid. This changes nothing since SCOTUS said how the government interpret this one part of CSPA.

Third, there are many parts of CSPA. What was not litigated in the case was the allowance to subtract the time it took USCIS to approve the I-130.

Fourth, CSPA applies to anyone with a case that was open when CSPA became law. It applies to this case.

-------

Here is what you need to do.

First, determine how long it took USCIS (formerly INS) to approve the I-130.

Second, subtract the time it took USCIS to approve the petition from your current age. The number you get is your current CSPA age.

Third, in 4 years (when you anticipate the PD will be current), what will your CSPA age be? If its under 21, you are good to immigrate. If its over 21, then your mother once she is an LPR can file a new I-130 for you where you will get a new PD.

[aaron2020 11,651]

My only chance was the lawsuit against the government in the Supreme Court to let sons and daughters over 21 years of age to retain their parent's original priority date which the court has ruled against unfortunately this past Monday.

Not true. The lawsuit was not your only chance. The part of CSPA that allows you to deduct the time it took USCIS to approve the I-130 was not litigated and remains valid.

Even then, there is still one last chance if Congress clarifies the confusing statute and confirms that the congressmen who made this law back in 2002 did intend for all children over 21 to retain their parent's original priority date as these congressmen have stated in an amicus brief sent to the Supreme Court and not just one category as the court ruled.

The only way for Congress to "clarify the confusion" by overruling the Supreme is with a new law. A new immigration law is not going to happen (ask Eric Cantor). A new law is the only way to "fix" what the SCOTUS gets wrong.

In the case of a victory, I need to know if my sister and I would be able to retain our mother's priority date or we will not be able due to not having been listed on our mother's petition as a derivative beneficiary at the time the petition was filed.

There is no victory. You already have SCOTUS's decision. There is no way for you as a derivative beneficiary in the F4 category to retain your mother's PD - this was what the lawsuit was about. You still get to take advantage of the part of CSPA which allows you to deduct the time it took to approve the I-130.

[bca94 0]

You seem to assume things without first asking. If I was depending myself on the retention of priority date it was because even when doing the CSPA formula I turn out to be older than 21. The time it took for my mother's petition to be approved was just 1 month. If my mom is gonna get her green card in around 4 years based on the current cut-off date of her category and the pace that it is going, reducing a month is meaningless and I will still be 23 years of age.

And I already knew that in the case of being over 21 my mother can petition me for a green card once she gets hers. But that would take around a decade and I'm not interested on migrating to the US to be seperated 10 years and to migrate at such late age.

And yes, when I said Congress to "clarify the confusion" I was obviously referring to Congres passing a new law fixing this problem. But then again, the GOP don't have the intention to help any immigrant whether legal or illegal and the democrats are so focused in illegals that they really forget about legal immigrants. So yeah, there's no chance if that was your point.

[aaron2020 11,651]

You seem to assume things without first asking. If I was depending myself on the retention of priority date it was because even when doing the CSPA formula I turn out to be older than 21. The time it took for my mother's petition to be approved was just 1 month. If my mom is gonna get her green card in around 4 years based on the current cut-off date of her category and the pace that it is going, reducing a month is meaningless and I will still be 23 years of age.

And I already knew that in the case of being over 21 my mother can petition me for a green card once she gets hers. But that would take around a decade and I'm not interested on migrating to the US to be seperated 10 years and to migrate at such late age.

And yes, when I said Congress to "clarify the confusion" I was obviously referring to Congres passing a new law fixing this problem. But then again, the GOP don't have the intention to help any immigrant whether legal or illegal and the democrats are so focused in illegals that they really forget about legal immigrants. So yeah, there's no chance if that was your point.

What am I assuming that I did not ask first?

Yes, it's obvious you were referring to Congress passing a new law.

Good luck to you. Bye.

[bca94 0]

Well, you replied to me in a manner like I didn't have any knowledge of the CSPA formula. If I was depending myself on the retention of priority date it was because the formula doesn't help me in the first place (reason why they made the retention of priority date clause, to help children who were still over 21 even when applying the CSPA formula).

[aaron2020 11,651]

Well, you replied to me in a manner like I didn't have any knowledge of the CSPA formula. If I was depending myself on the retention of priority date it was because the formula doesn't help me in the first place (reason why they made the retention of priority date clause, to help children who were still over 21 even when applying the CSPA formula).

Sorry, next time I will peek into your head to answer properly based on your personal knowledge.

[bca94 0]

Assumptions shouldn't be made neither. Perhaps answering limiting to the information given would be better.

[amandaciar22 1]

Hi bca94,

Let's assume that you would be an aged out child

Still i'd like to advise you to have your mom file a new petition under f2b category

Its better to wait for something than nothing

Everyone in f2b category waited a very very long time

Just like my self

Been separated with my family for 8 yrs

But when they arrived in US they did'nt file the petition at once

Thats the mistake

They just filed it 4yrs ago

My dad was in f4category as well and i was also an

Aged out child

Who knows like Penguin said, the law might change in time and pd might speed up

My pd still has along way to go, i hope f2b processing Speeds up as other categories slows down